A Few Further Thoughts About the Empirical Surrogacy Piece

My last post discussed a recent paper reviewing the empirical research about surrogacy. I think it’s an important paper because empirical research, if properly done, helps us understand how something is actually working the the real world. This allows us to evaluate whether our theoretical critiques are valid, or whether our theoretical concerns are born out in the real world.

The main point of the paper (authored by Professor Karen Busby and Delaney Vun) is that the three main feminist critiques of surrogacy are not, in fact, born out by the empirical research. Or at least not in the US, Canada and the UK, which is where the empirical studies were conducted. According to the paper, surrogacy does not lead to the exploitation of women generally or of women in any particular class/racial group.

Further, women seem to be generally capable of making the decision to become a surrogate and following through on that decision. The vast majority find the the experience of being a surrogate to be satisfying. It does seem that the relationship between the surrogate and the commissioning parents is important here.

Further, while there is certainly an extensive feminist critique about surrogacy as commodification, there is little evidence that the individuals (women and children) actually experience commodification or its effects. This, too, seems to tie in part to the relationship between the parties. This also might be the weakest of the conclusions, as the children involved are young.

I’ve returned to this topic again expand on one point I made yesterday and take it a bit further. It seems clear from the studies (and it makes intuitive sense to me) that the most critical factor in the overall success of surrogacy is the relationship forged between the parties involved. That suggests that the focus of regulation ought to be on ensuring a positive and respectful relationship between the surrogate and the commissioning party or parties.

Law/regulation cannot decree that the relationship must be a good one. But it can shape the conditions in order to encourage the formation of a good relationship. My own skepticism about surrogacy is rooted in a concern that the commissioning parents may reduce the surrogate to little more than a glorified babysitter. This, it seems to me, is highly undesirable.

At the same time, it seems to me that in a world of globalized commerce surrogacy will exist. If surrogacy is illegal in one place people will simply go to another. (India is one prominent center of out-sourced surrogacy.)

The descriptions of outsourced surrogacy strike me as far more troubling than the descriptions of home grown surrogacy. It seems to me far less likely that the surrogate in India will forge a positive relationship with the commissioning couple from a foreign land. Instead, it is far more likely that she is seen as just a hired servant–a handmaid in the worst sense of the world.

So it seems to me increasingly counter-productive to argue for the criminalization of surrogacy. Indeed, the authors of the paper add yet another reason for this view–since surrogacy is illegal in Canada, surrogate mothers are less likely to receive counselling and advice from professional sources. This means they are more vulnerable to exploitation.

We need to think in terms of constructive regulation rather than abolition of surrogacy. Insisting that the woman who gives birth is a mother (which is the position I’ve taken in the past) may not be the only way to accomplish this and it may not even be the best way. It’s worth thinking about alternatives.

I also wanted to toss out a question. I know many of my readers link parenthood to genetic connection. From this perspective it seems to me that where an embryo is created from the genetic material of a male/female pair of commissioning parents and is then transferred into surrogate, the parents of the child are the commissioning parents. But at least some of the same readers have also expressed concerns about commodification and the ART industry, of which surrogacy is clearly a part. I’m wondering how those concerns fit in here.

36 responses to “A Few Further Thoughts About the Empirical Surrogacy Piece”

-As previously posted, I suggest the first order to minimize exploitation would be to outlaw commercial brokerage or agencies in which the surrogate is in effect and employee of the agency.
-If this step is not taken, at the very least it should be illegal for the broker to receive a commission that is more than say 10 percent or so of the surrogate’s fee.
-Additionally, it should be clear that the commissioners have no legal say in how the surrogate treats her body during pregnancy- the choice of physician, type of medical care, diet, smoking, etc are all her decision. This includes the right to abort and the right refuse treatment that might be beneficial to the fetus but increase risks for her (for example, a cesaerean section in certain cases).

You have a good point about the surrogate having the sole right to make decisions about her body. But here is the thing. Regardless of rather there is a good relationship or not, the surrogate still feels powerless. As mentioned, surrogates usually are middle class women and not the low economic status that earlier studies have tried to show. However, the commissioning couple is usually from a high economic class as surrogacy is not a cheap way to go. So even if the surrogate wants to disagree or not do something, there will be that fear of legal consequences. The financial drain lawsuits can have on people, even people that have money to spend, is crazy. The average party in a surrogacy case gone wild spends between $30-$50 K to state their case. So for these studies to say that there are many more successful cases than bad, does not take into account that once pregnant, the surrogate has no choice to comply.

I stumbled upon this blog and posts, and have found the discussion to be very interesting. Before I go on, I will immediately out myself as a former “commissioning parent” (most commonly referred to as an Intended Parent – IP) and also the owner of a surrogacy agency.

First off, I am happy to see that there has been some empirical research being conducted on who actually is a surrogate in the US. As stated, most of the gestational surrogates (GSs) we work with (we do not oversee traditional surrogacies) are middle class women with some college. While not as common, we have also worked with surrogates with master’s degrees, law degrees, and other professional degrees. These are not women who are being exploited. They go into this willingly and with full knowledge of their role and obligations. We do not accept someone into our program that is on any sort of government assistance or needs the money from this to sustain her lifestyle.

To address one of the blogger’s comments – the GS is not an employee of the agency. That is not how the surrogacy is structured and not how the contracts are drawn up. The agency acts as the liaison – coordinating with all of the parties including the clinics, lawyers, psychologist, escrow company, etc. An agency also assists in making matches between GSs and potential IPs that allow for a good personality fit. They ensure that people have realistic expectations of the process and relationship and that they share similar ideologies in regards to issues that can arise. Because my agency has done this hundreds of times we know how to avoid many of the pitfalls that people can fall into who are doing this for the first time. We do not represent the GS or the IPs but the entire process. Our primary goal is to help bring a healthy baby into the world and for all parties (GS, her family and the IPs) to have a fulfilling journey. In doing so this includes ensuring that the surrogate feels appreciated and valued for her large contribution to making someone else’s dream of a family come true. But the IPs have needs too – including feeling their unborn child is being taken care of and the carrier is acting responsibly. Is this controlling or unreasonable? Is it taking advantage of someone? I have yet to meet a surrogate who feels “powerless.” Rather, they feel quite empowered in their ability to help someone. One role of the contract is to lay out these boundaries and responsibility of all parties so there is no misunderstanding of their roles. It is a two way street and the best surrogacy journeys and contracts take both parties into consideration.

As for how much control the IPs have over the surrogate’s body — the truth is not much. The contracts want to ensure the health of the baby where it can, and usually defer to the doctors to establish those guidelines and oversee what is reasonable for the surrogate to do and eat (as with any pregnancy). Most surrogates take incredible care and feel a great sense of responsibility in carrying someone else’s child. Most IPs are not looking to control the GS. They want what every prospective parent hopes for — a healthy, full term baby. The contracts give guidelines to help achieve this. But, most IPs and GSs never return to a contract to check if the GS can or can’t do something.

Lastly, every contract ensures that the life and health of the GS supersedes that of the unborn child. No matter which state the contract is drawn up in this holds true.

I could address other issues that have been brought up but I will address only one more regarding the feelings of the child born in “pseudo-natural clinical conditions.” I hate to say this but the comment seems uniformed. While no widespread studies have been done with children born via surrogacy, there was a relevant study done in Denmark a few years back that showed that teens who had been conceived with the assistance of IVF (“pseudo natural conditions”) had better, more fulfilling, less angst-filled relationships with their parents than teens of the same age conceived naturally. It would not surprise me to see similar findings from a study on children born through surrogacy.

There are many misconceptions from outsiders about this process and the people involved in it (and the media only fuels these misconceptions). But when people take the time to personally talk to surrogates and parents (and children born) through surrogacy many of the myths are dispelled.

beautifully stated Kathryn! I, too, find that most of the people out there who talk so negatively about surrogacy, don’t know that much about it and are speaking from an uninformed point of view. If the media would focus on the more ‘average’ type of surrogacy (one that goes picture perfect and does not involve a celebrity) perhaps all of those who are so ‘against’ surrogacy as a means of creating a family would come to understand it better. Surrogacy is never the first choice for an IP to have a child. And people who have their children via surrogacy tend to want those children very very badly — which usually means that the children will grow up feeling very very loved.

“while no widesperad studies have been done with children born of surrogacy” you write here making you yourself uninformed which is dangerous as you run a surrogacy agency.

On this website site there called Surrogacy Revisited An Empirical View’ has a message guven by a poster named Y who references Baby M and JF vs. DB.

Can’t be too careful where children are concerned. As usual on this site the adults involved ignore the messages of those affected, and carry with thier rhetoric as if the DI-community themselves, the victims, don’t count.

“the child by reason of his physical and mental immaturity, needs special safeguards and care, including appropiate legal protection BEFORE as well as after birth.” is a quote from UNICEF

“The contracts give guidelines to help achieve this. But, most IPs and GSs never return to a contract to check if the GS can or can’t do something.

Lastly, every contract ensures that the life and health of the GS supersedes that of the unborn child.”
________

The very idea that a contract regarding a person’s treatment of their own body could be legally valid is offensive in the extreme.

Just as no contract in the world can obligate me to have sex for example if I change my mind, no such contract should be legally recognized if the surrogate changes her mind regarding a particular behavior during pregnancy.

A court who upheld such a contract would be party to rape.

I have no problem with an informal agreement between the parties, but not a legal one.

What happens if a gs finds her pregnancy very difficult and decides to abort? Does she have to give money back received till that point? Can she renegotiate for higher payment to continue? If the IPs are not willing to pay more can she accept a higher payment from another couple and sell the baby to them rather than abort? Seems there are a lot of prospective questions with commercial baby making.

While I appreciate all of the comments, the truth is until you walk in our shoes (the infertile who need help in having a family) you will never really understand the ramifications of the comments you are stating.

Just because I cannot carry a baby on my own, does that mean I should not be able to have one?

A surrogacy contract, done in a state where surrogacy is legal (and that is CRITICAL) – is a contract. The women who enter this (the surrogates) are not threatened into it, they do it freely and with the understanding of all risks involved (pregnancy is always risky — for anyone). For the most part, the surrogates enjoy being pregnant, truly want to help a family have a child as well as earn some money to help out with their own family.

I resent the comments that make this sound like the surrogates are ‘bound’ to promises that might jeopardize their lives or ethical values.

Done properly – there are several evaluations that happen prior to entering a surrogacy relationship — psychological, background, medical — this is NOT a simple, easy course. And no one should ever assume that it is.

As any informed person knows — even if a woman is pregnant with her own child and has a life threatening situation happen – and the question is whether or not to save her life or the baby’s — the doctor or treating physician will save the woman’s life. And that is exactly how it would be with a surrogacy pregnancy. The woman’s health (the patient) comes first…. and everyone understands that going in.

However, it would be quite frightening indeed to think that a surrogate who has been approved by a legitimate surrogacy agency, a licensed psychologist who only deals with infertility related matters , and an RE well versed in third party reproduction — would ever get to the point in a pregnancy where she just ‘felt bad’ and wanted to abort???!! Doesn’t happen. Again, instead of going to ‘what-ifs’ and expounding on things that do not happen in real surrogacies, try walking in our shoes instead of stirring up the pot and scaring others about surrogacy.

I’m sorry, clearly I am passionate about this.

To answer Sandy above, a surrogate is paid for each day she is pregnant – she is NOT paid for a baby. She is paid for her time and effort in doing this… I truly doubt any sane surrogate would ‘give up’ and decide to abort.. but in the event of a miscarriage, she does not pay back any monies she has already received.

The surrogacy contract is a legal binding contract (done in the right states and with attorneys) and the situation you conjure up could not happen. You cannot sell a baby to the highest bidder that rightfully belongs to someone else.

The right to refuse treatment (even life saving treatment!) has been upheld by the supreme court. Julie, isn’t it correct that contracts in which parties waive their constitutional rights are for the most part are invalid?

If this is correct a surrogate may refuse even life saving treatment whether herself or for the fetus. A surrogate may disregard Dr’s reccommendations as much as any other patient. The fact that this is infrequent wouldn’t change the law.

The notion of a woman contracting out her womb certainly seems strange to me. I can’t really get my head around the fact that this is a legal business undertaking governed by contract law. It defies my understanding of bodily autonomy. I understand that gestational surrogates have been sued for damages by IPs for harm done to the baby during pregnancy. The idea of treating women as walking wombs for hire with liability if the IPs are not happy with the baby seems very dehumanising to me.

I, in turn, invite you to look closely at the effects of surrogacy, there are problems that you seem to ignore., written up on this site using existing examples. I know you expect pity, but I don’t see why. I suggest counselling. Poor people don’t get upset if they don’t have children; there’s one less mouth to feed. I can do nothing to dissuade you from this indugence; in fact I expect a response telling me how awful life is for you, but my sympathies are not for you but for the real sufferers. If you don’t know who they are by now, then I think that sums up the dubious ideology that dominates these debates.

Not having children is extremely painful, and one need not, indeed should not minimize that in order to prove their own point, especially in the same breath as you demand compassion for others.

This being said, if IPs can successfully sue GS for harm done to the baby during pregnancy, it is but a slippery slope to criminalizing ALL women for putatively harming their babies by smoking or whatever, even disagreeing with their doctor on a particular treatment course, and of course, threatening the right to end a pregnancy. In short, treating a surrogate mother like a walking womb is nothing short of disastrous for ALL women.

I just would like to point out that the life and health of the mother does NOT always trump that of the fetus in common obstetrical practices. Just one example of this is the current ACOG reccommendations to deliver all breech babies by cesaerean section.

One of the reasons behind this is that the mothers themselves are willing to take extra risks for what they perceive as the welfare of their babies. (the other is that lawsuits are far more common for handicapped babies)

Are surrogates aware of this?

Additionally, someone mentioned that the decision of care is up to the doctor. That is wrong. It is up to the patient.

I feel this is an important point to state because in obstetrics the trend toward medical paternalism is gaining serious ground.

I wonder if a GS refused a cesarean whether a hospital knowing the child she was carrying was not hers would apply to a court for an order that it be carried out involuntarily. On balance a court might decide that an abdominal operation is preferred when saving the life of a child which has cost $100,000 to manufacture.

I bring this up because about a year ago there was a case where a court declared a woman mentally incompetent, and ONE of the reasons was that she refused a cesaerean section. Even though the baby was born perfectly healthy (which mean that in this case she was right and the docs were wrong….)
As I said, this was only one of the reasons, there were many others, but the fact that the court could even bring it up is chilling.

I also think courts place a great deal of stock where money is paid. Since there are no interests of a child evaluations where a baby is manufactured commercially (ie) through sold gametes and paid gestational service, it is likely that a court would disregard a GS’s bodily autonomy when she has sold the use of her womb to a commissioning couple.

In my view there is nothing good that has come out of commercializing reproduction. I have yet to meet a donor conceived person who is grateful that his/her father sold them and I’m pretty confident that children born through a hired womb situation will not be that thrilled about the way s/he was brought into life. In my view there is no argument that can be made compelling enough to reduce baby making to a matter of contract and commerce. I’m not talking here about paying a doctor to clear tubes so conception can take place, but rather the trading of gametes, embryos and wombs. Really abhorent stuff!

Couldn’t the argument simply be made that surrogacy is, at its core, the provision of a medical service? If other, less radical, fertility treatments aren’t effective, should prospective parents, who desperately want a child, be barred from pursuing this option?

Should rational, adult women be barred from accepting payment for this service?

kisarita, you say how extensive is your knowledge of donor conceived to make such a confident statement? Obviously, it is difficult to make a strict scientific study of donor children, because you can’t choose a random sample. The same applies to studies of children growing up in “unconventional” families. Even for children of divorced parents it is difficult, because the serious effects of divorce tend to show up 20-30 years afterwards, so you have to do a 30 year longitudinal study.

However, I don’t see that the question of statistical validity matters in the case of donor children. These children have deliberately been deprived of rights that other children have. If some of them suffer from the consequences it is unacceptable, not because of statistics, but because of morality. What are we going to say to the twins born from the 60 year old Spanish woman who was artificially inseminated and died two years after the birth? That they were “statistically insignificant”?. The Spanish government is now trying to figure out what to do with them. Presumably they will be put up for adoption. The sad truth is that these children have become inconvenient “merchandise”.

I don’t ask for exact statistics but when making such a blanket statement, one should give a general idea whether they are talking closer to two people or two hundred, whether these are people they actually know, have actually discrussed it with, or have heard/read about…

I would say that my knowledge of the donor conceived attitudes is pretty extensive. Almost without exception every donor conceived person I’ve met has said that their father profiting by deliberately cutting them off from him, is tremendously hurtful.

I was going to step out of this conversation because I’m quite surprised at the comments.
But this last one begged for a response…
a sperm donor is NOT a father. And should NEVER EVER be called that. Donating sperm or donating an egg does NOT make you a parent. Please I beg of you, before continuing to make such posts, be aware of the language you are using and how it affects people. I have access to hundreds of parents who are parents via egg donation and/or sperm donation or embryo donation — and the resulting children are very loved, and 100% secure in their situations. And many of those children are now in their teens and early 20s. So unless you are truly involved in this area, and have first hand experience (which pretty much only comes with having lived it) you really need to take a little more care in wording this comments.

To elaborate: If you will excuse me, most of us don’t walk around asking how they were conceived and how they feel about it. As an anonymous person claiming expertise on this subject, you would boost your credibility if you would give some indication on how extensive your knowledge is and how you arrived by it, whether by personal involvement in the donor conceived community, or by research, or by some other professional capacity.

Lauri, I’m sure your opinion that a sperm donor is not a father is a very profitable and convenient position for you to take, but you are wrong. A sperm donor is absolutely a father. He has contributed half the DNA of the child born and that makes him very much the father.

Lauri, I’m sure your opinion that a sperm donor is not a father is a very profitable and convenient position for you to take, but you are wrong. A sperm donor is absolutely a father. He has contributed half the DNA of the child born and that makes him very much the father. Donor conceived children almost invariably regard the donor as a father even if they also consider their social father as a father. Please bear this in mind as you distribute donors children around.

There is paper by A.J. Turner & A. Coyle: “What does it mean to be a donor offspring? The identity experiences of adults conceived by donor insemination and the implications for counselling and therapy”. See this press release from The University of Surrey.

I have come across a couple of informal interviews with groups of donor offspring on the internet. If I find the links I will post them.

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Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.